Compliance Corner: April 2022 – What’s Your Excuse? Are You Following IDEA Regulations When a Required Member is Not Able to Attend an IEP, in Whole or in Part?

Cindy Soo Hoo, TAP Consultant

In the previous edition, we discussed the regulations regarding the required members of an IEP Team. Let’s review who those required members are:

Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment).
Not less than one special education teacher of the child or, where appropriate, one special education provider of the child.
A representative of the public agency who: a) is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities. b) is knowledgeable about the general education curriculum; and c) is knowledgeable about the availability of resources of the public agency; and

4. An individual who can interpret the instructional implications of evaluations results.

The person referenced above who is able to interpret the instructional implications of the evaluation results could be any one of the preceding required members or any other person who may be invited to the meeting by the parent or the public agency. This might include an evaluator who conducted the educational evaluation or some other person with knowledge about the child or the evaluation of the child.

34 CFR §300.321(a)

However, we acknowledged there may be times when a required member cannot

attend an IEP, in part or in its entirety. It is important to note this should be the exception and not the rule. The purpose of the required members being present is to provide the opportunity for the IEP Team to hold a comprehensive and pertinent dialogue about the unique needs of the student and develop an IEP that meets those unique needs. Should a required member not be able to attend the IEP in part or in its entirety, the following must occur depending on whether that member’s area is intended to be discussed:

If a required member’s area is not intended to be discussed, the parent of the child and the public agency would agree, in writing, that the attendance of the member is not necessary.

An example of this scenario might be: The occupational therapist is seeking to revisit the occupational therapy goals for the student, but the regular education teacher is unable to attend. In this case, the regular education curriculum or the progress of the student in the regular education setting are likely not going to be discussed. What is likely to be discussed are the goals for which the occupational therapist is responsible. In this situation, parent and district agreement would suffice. It is recommended to document this agreement on the signature page of the IEP as well as in the Prior Written Notice.

However, in cases where the member’s area will be discussed, the parent and the public agency must consent in writingto the excusal AND the member submits in writing, to the parent and the IEP Team, input into the development of the IEP prior to the meeting.

An example of this scenario might be: It is an annual review IEP in which the Least Restrictive Environment (LRE) would be a required component of the IEP to address. In this situation, the regular education teacher cannot attend the IEP in part or in its entirety. As a result, the parent and the public agency would need to provide consent indicating the IEP meeting may continue without the regular education teacher in attendance. This would likely be a form to be signed and kept with the student’s educational records. In addition, the member who is unable to attend must provide, prior to the IEP meeting, their input to the parent and other members of the IEP Team. Again, in addition to a signed form, I would indicate the regular education teacher’s non-attendance on the signature page of the IEP as well as in the Prior Written Notice.

Should a parent refuse to excuse a required member, the IEP must be rescheduled at a time in which the required member can be in attendance. At any time and in either scenario, the IEP Team finds it unexpectantly necessary to discuss that’s teacher’s area of curriculum or the parent revokes consent for the excusal, the IEP must be suspended and reconvened with the required member in attendance. Barring any emergencies, school personnel should provide parents with as much notice as possible to request that a required IEP Team member be excused.

Should your district not have an excusal form in place, I would recommend a document be created and vetted to ensure it meets with the regulations under the IDEA. In addition, while IDEA does not include other personnel such as related service staff as required members of an IEP Team, it would be important to check with your school district to determine if additional requirements have been put in place.

34 CFR §300.321(e)

Stay tuned for the next Compliance Corner which will be a Question and Answer session. Feel free to submit questions to either Loretta Garcia, TAP Coordinator, at lgarcia@ces.org or Lianne Pierce, Director of Ancillary Services, at lianne@ces.org respectively.

We hope you’ll join us on April 28, 2022, for “IEP From A-Z:  A Deeper Dive” when we will dig deeper into some of the required components of an IEP.  Leigh Adams-Emanuel, TAP Consultant, and I will provide participants with opportunities to further their knowledge through hands-on activities of IEP components such as the Present Levels of Academic Achievement and Functional Performance (PLAAFP), Goals, Least Restrictive Environment (LRE) and Prior Written Notice (PWN).  This presentation, provided virtually only, will be available both in a morning or afternoon session.  Participants will only need to attend once, either 8:30-11:30 or 12:30-3:30.   Look for the flier on the CES website.  We hope to see you there!

*Cindy SooHoo is a former Compliance officer that has worked with public school district attorneys on numerous Due Process Hearings and PED Complaints, working tirelessly to support her school district in the appropriate execution of Special Education legal compliance in all areas regarding IDEA and the NMAC, providing what is in the best interest of the student within the framework of the law.